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Court dubious in poisoning case that cites treaty

Wednesday - 11/6/2013, 3:18am EST

JESSE J. HOLLAND
Associated Press

WASHINGTON (AP) -- A love triangle that ended with a woman poisoning her pregnant rival spawned a debate over chemical weapons, international relations, federalism and chocolate at the Supreme Court Tuesday, with justices left trying to make sense of how a jealous wife ended up being prosecuted for violating an international chemical weapons treaty.

Carol Anne Bond of Lansdale, Pa., is challenging her conviction, saying that the federal government's decision to charge her using a chemical weapons law was an unconstitutional reach into a state's power to handle what her lawyer calls a domestic dispute.

Bond, unable to carry children of her own, was excited when her best friend Myrlina Haynes announced her pregnancy. But Bond later found out her husband of more than 14 years, Clifford Bond, was the father.

Bond, a laboratory technician, stole the chemical 10-chloro-10H phenoxarsine from the company where she worked and purchased potassium dichromate on Amazon.com. Both can be deadly if ingested or exposed to the skin at sufficiently high levels.

Bond combined and spread the chemicals on Haynes' door handle and in the tailpipe of Haynes' car. Haynes noticed the bright orange compound but could not get local police interested in investigating. She called at least a dozen times, but police suggested that she take her car to a car wash and suggested that the chemicals might be cocaine.

When Haynes found the compound on her mailbox, she complained again to police, who told her to call the United States Postal Service. Federal investigators videotaped Bond going back and forth between Haynes' car and the mailbox with the chemicals. Postal inspectors arrested Bond, saying that Bond tried to poison Haynes at least 24 times between 2006 and 2007.

"The state of Pennsylvania exercised its prosecutorial discretion not to pursue this matter," Bond's lawyer said.

But a federal grand jury indicted her on two counts of possessing and using a chemical weapon, applying a federal anti-terrorism law. The law was passed to fulfill the United States' international treaty obligations under the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and use of Chemical Weapons and on Their Destruction.

Bond pleaded guilty and was given six years in prison. This is her second time in front of the Supreme Court. In 2011, the court unanimously sided with Bond to allow her to challenge her conviction despite arguments from federal prosecutors and judges that she should not even be allowed to appeal the verdict. Lower courts subsequently rejected the appeal, leading to her current challenge.

A couple of justices were very critical of government prosecutors for choosing even to prosecute Bond using the chemical weapons law. "If you told ordinary people that you were going to prosecute Ms. Bond for using a chemical weapon, they would be flabbergasted," said Justice Samuel Alito. "It's so far outside of the ordinary meaning of the word."

Justice Anthony Kennedy said it "seems unimaginable that you would bring this prosecution."

The chemical weapons law makes it illegal to "develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess or use, or threaten to use, any chemical weapon."

Justices went down a long list of everyday items that could be prosecuted under the law since they could cause harm to humans or animals, including the use of kerosene, matches, performance-enhancing drugs used in sports, and even vinegar -- which would poison goldfish if introduced to a fishbowl. Alito later drove home his point by saying under the law, even innocent ordinary actions could become questionable if the government's power is not limited.

"Would it shock you if I told you that a few days ago my wife and I distributed toxic chemicals to a great number of children?" he said to laughter from the courtroom. "On Halloween, we gave them chocolate bars. Chocolate is poison to dogs, so it's a toxic chemical under the chemical weapons" law.

Solicitor General Donald Verrilli assured Alito he would probably get away with it, but warned the issue was no joke and said justices shouldn't get involved in trying to decide what treaty terms mean.

"One of the very things we are trying to sort out right now in Syria under the Chemical Weapons Convention is where the line is between peaceful uses and warlike uses," Verrilli said. "And this phrase, 'peaceful uses' is not only in the Chemical Weapons Convention, it's in the Nuclear Nonproliferation Treaty, and we're engaged in very sensitive negotiations right now under the Nuclear Nonproliferation Treaty trying to draw exactly the same line. And it would be terribly unfortunate, I would submit, if the court were to announce in the context of this case ... a definition of what warlike constitutes that could have an unfortunate bearing on those" negotiations.